Summary: Mrs M complains the Council refused her request for school transport for her son, B. B’s EHC Plan says Mrs M will provide his transport. Mrs M had a right of appeal to the Tribunal if she disagreed. Further investigation by the Ombudsman would not lead to a different outcome: the Ombudsman has neither the authority nor the expertise to decide the matter.

The complaint

1. Mrs M complained following her unsuccessful appeal for home to school transport for her son, B. She believes her son is entitled to transport.

Back to top

The Ombudsman’s role and powers

2. 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’. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or the injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider the complaint.

(Local Government Act 1974, section 24A(6), 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’))

Back to top

How I considered this complaint

5. I have considered:
• information provided by Mrs M;
• information provided by the Council.
6. I invited Mrs M and the Council to comment on my draft complaint.

Back to top

What I found

7. Mrs M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council.
8. An EHC Plan describes a child’s special educational needs and the provision required to meet them. A Plan should name the school, or type of school, the child will attend.
9. B’s EHC Plan says he will attend a named primary Academy with a specialist resource centre for children with autism, subject to his family accepting responsibility for his transport. B’s Plan says the Council considers a named local mainstream primary school can meet his needs, and B will attend this school if his family no longer wish to arrange his transport to the Academy.
10. Mrs M asked the Council to provide transport to the Academy. The Council refused. Mrs M appealed the Council’s decision, but her appeal was unsuccessful. Mrs M then complained to the Ombudsman.
11. Mrs M said she believed B was entitled to transport to the Academy. She said B was never offered a place at the local mainstream primary school the Council considers appropriate, and she thought it was unreasonable she should be expected to turn down the offer of a place at the specialist resource centre. She said case law had established that a child in B’s circumstances was entitled to free transport if two schools could meet his needs and the cost of transport to the parents’ preferred school was ‘negligible’. She believes the cost of transport to the Academy is negligible. She said the Council was ignoring the case law.
12. Since Mrs M’s complaint to the Ombudsman, the Council says B has been offered, and has taken up, a place on school transport.

Consideration

13. I understand the Council now provides B’s transport, although Mrs M must pay for the transport. The Council says this has resolved Mrs M’s complaint. Mrs M disagrees. She does not think she should have to pay for B’s transport.
14. When two schools can meet a child’s special educational needs, the Council must normally name the parents’ preferred school unless it is not an efficient use of resources. The cost of transport is taken into account when deciding whether the parents’ preferred school is an efficient use of resources.
15. Councils can name the parents’ preferred school subject to the parents arranging transport. If the parents disagree and want the Council to remove the requirement they arrange transport, they can appeal to the First Tier Tribunal. The First Tier Tribunal will decide whether the Council should pay for transport. The Ombudsman has neither the authority nor the expertise to decide the matter.
16. It is likely that Mrs M is out of time to appeal to the Tribunal. She could, however, ask for a review of B’s EHC Plan if circumstances have changed and this would likely give her a fresh right of appeal.

Back to top

Final decision

17. I have ended my investigation. B’s EHC Plan says Mrs M will provide his transport. Mrs M had a right of appeal to the Tribunal if she disagreed. Further investigation by the Ombudsman would not lead to a different outcome. The Ombudsman has neither the authority nor the expertise to decide the matter.

Back to top

Investigator's decision on behalf of the Ombudsman